by
Stewart H. Diamond
Sharon L. Eiseman
Robert K. Bush

1. What do you do if no quorum shows up at a meeting?

ANSWER: Meetings of the City Council, the Village Board, and all municipal committees can only operate if a quorum is present. For the Corporate Authorities, a majority of the full membership of the Board or Council, including the Mayor or President, must be present. (65 ILCS 5/3.1-40-20.) Unless specifically provided by statute, the Corporate Authorities can establish quorum requirements for Boards or Commissions. If no quorum is present, no actions can be taken. The smaller group which is present can either adjourn the meeting to a specific date and time or can compel the attendance of missing members. In the event that members of the public have come to a meeting at which no quorum is present, there is no reason why the elected officials present cannot simply listen to the comments of those individuals who wish to make statements.

2. What do you do if a quorum shows up at a Plan Commission meeting, but some members leave before a vote is taken?

ANSWER: If a quorum is not present, no vote of the governmental body may be taken. If a quorum is lost for a brief period of time during a meeting, the meeting may still continue so long as no action is taken and no member present requests a roll call.

3. What do you do if a member of the public comes to a Village Board meeting and begins setting up an elaborate light system to photograph the meeting?

ANSWER: The Open Meetings Act specifically allows members of the public to take photographs of and to record public meetings. The Council or Board, however, can establish reasonable rules and regulations, hopefully in advance of a controversial situation, which will ensure that the efforts to record the meetings will not interfere with the ability of the government to carry out its duties. (5 ILCS 120/2.05).

4. What do you do if a lingerie shop moves next to a school and sells sexual devices, but only a few pieces of lingerie?

ANSWER: Governmental bodies are allowed to use zoning and licensing regulations to deal with adult uses which wish to open within the community. A series of cases have arisen that govern the way communities can limit adult uses to certain portions of the municipality and can regulate their operation. For an article about a case tried and won by our attorneys, see our Spring/Summer 2000 Newsletter elsewhere on this Web Site.

5. What do you do if your next Board meeting is scheduled on a holiday?

ANSWER: A governmental body can hold a regular meeting on a legal holiday, provided it has been previously scheduled. It cannot hold a special meeting on a holiday (5 ILCS 120/2.01). It is likely that a municipality could hold an emergency meeting on a holiday, but only in a situation where a true emergency occurred.

6. What do you do if you want to cancel or reschedule one Board meeting?

ANSWER: Where the corporate authorities wish to cancel or reschedule a council or board meeting, it should be done publicly at a prior meeting. That action is sufficient notice to the public, although an agenda for any rescheduled meeting must still be posted 48 hours prior to the meeting. If during the year, the municipality wishes to change the dates of its regularly scheduled meetings, it must publish a notice in the newspaper informing the public of this continuing change, at least ten (10) days prior to the change, or, in a community with a population of less than 500, where no newspaper is published, post a notice in three (3) permanent places in the municipality, and also send notice to the media that have formally requested notifications pursuant to §2.02 of the Open Meetings Act.

7. What do you do if all your meetings run until midnight?

ANSWER: Governmental bodies rarely do their best work late in the evening. If you find that your meetings are perennially running into the wee hours of the morning, it may be desirable to call additional meetings and break up the agenda. In the Illinois Municipal Handbook, authored by attorneys at this firm and published by the Illinois Municipal League, there is a lengthy section entitled "16 Ways To Shorten And Improve Municipal Meetings." One of the best ways of shortening meetings is to make use of the consent agenda under which a single vote may be taken to pass a large number of non-controversial matters.

8. What do you do if a citizen makes repeated requests for copies of voluminous documents?

ANSWER: Under the Freedom of Information Act, if a citizen makes repeated requests for copies of voluminous documents, the government can ask to meet with the individual to determine whether there is a way to shorten the requests. In addition, a governmental body can require an advance payment from a citizen where past experience has shown that copies of documents are requested but not picked up.

9. What do you do if, as an Alderman, you are asked to vote on an application for a special use submitted by a bitter business rival?

ANSWER: If a member of the City Council or Village Board believes that his or her own personal friendship or animosity towards an applicant would result in a lack of objectivity in his of her voting, that individual should abstain. In some cases, an abstention will count with the majority. If the official does not want the vote to count under any circumstances, the official should state that he/she is are "recusing" himself/herself from the vote.

10. What do you do if the school district refuses to follow your drainage or building codes?

ANSWER: School districts are not covered by municipal building codes, but, instead, by State mandated life safety codes. School districts and other governmental bodies are generally covered by the zoning, subdivision and drainage ordinances of the municipality.

11. What do you do if a legal description in a public notice is in error?

ANSWER: If a legal description in a public notice is in error, there is a statutory procedure for the government to correct the errors. (65 ILCS 5/1-2-4.) If, however, the error was such that it would not properly notify the public of the nature of the property, for which the public hearing was held, then notice must be republished.

12. What do you do if an Alderman and spouse separate and the Alderman moves out-of-town?

ANSWER: If an Alderman and the spouse separate, and the Alderman moves temporarily out-of-town, that individual may continue to serve in the elected capacity. From a legal standpoint, the requisite residence of an elected official is governed by an intention to return to a physical residence within the appropriate district or municipality within a reasonably short period of time.

13. What do you do if you want to buy a product from a single-source vendor?

ANSWER: A municipality is not obligated by State statute to purchase a product by competitive bids. The statute only requires bidding for public improvement projects. However, many municipalities have adopted ordinances requiring competitive bidding for supplies. In most cases, such local ordinances allow the municipality to waive the bidding requirement when, for example, a single source vendor is encountered.

14. What do you do if a flower shop balks at a $500 annual license fee?

ANSWER: You should listen to the complaint, since it may be valid. Except in the instance of liquor license fees, which can be substantial because that license is a privilege, municipalities must be careful that their license fees bear a reasonable relationship to the actual cost of enforcement of licensing regulations. Under the Illinois Constitution, municipalities are not permitted to use licensing as a source of revenue. Of course, the cost of regulation can differ from year-to-year, and the community is entitled to consider future regulatory costs. A court has held that a license fee which is 4 times the cost of annual regulation is valid, but another court held that a fee equal to 10 times regulatory costs was invalid. Municipalities need to be careful not to make themselves victims of a class action lawsuit seeking to recover all excess license fees for a number of past years.

15. What do you do if the Mayor asks for an increase in the salary of Liquor Commissioner?

ANSWER: The salary of the Mayor or Village President cannot be increased during his or her term. In the non-home rule community, only the Mayor can be the Liquor Commissioner. The salary for the Liquor Commissioner must be set at least 180 days before the commencement of the Mayor's term, and it cannot be newly created, increased or decreased during the term.

16. What do you do if a low bid on a construction contract is still more than you want to pay?

ANSWER: Consider other options after first consulting any special ordinances you may have in your own code book. For example, your board or council could reject all bids and rebid the project, although this choice will involve an additional expense and might still produce the same result. Secondly, the corporate authorities could accept the lowest responsible bid and authorize the staff to negotiate a reduction in the contract price with that company, except that no other changes in the contract specifications may be made. 720 ILCS 5/33E-12. Third, the corporate authorities could, outside the bid process, find a contractor willing to perform the work at the desired price, and then, by a 2/3 vote of the aldermen or trustees, approve a waiver of competitive bidding and an award of the contract to that person or company. Finally, the municipality, also by a 2/3 vote, could choose to construct the improvement itself by employing its own labor.

17. What do you do if an auto dealer proposes to come to your town, but wants a sales tax and property tax rebate?

ANSWER: Various statutory provisions and, if your community is home-rule, then the Illinois Constitution as well, authorize municipalities to grant certain commercial and industrial entities a property tax abatement (35 ILCS 200/18-165). Property tax abatements are limited to a period of ten years and a combined aggregate of $4 million from all taxing districts abating taxes for the same property, but the business must be newly locating within the state or expanding an existing facility within the community, rather than simply locating from one municipality to another. Home-rule units of government are likely not bound by these restrictions. Similar types of tax abatement are available for property located within an enterprise zone, (35 ILCS 200/18-170. Sales tax sharing or rebates are also permitted by means of "economic incentive agreements" pursuant to Section 8-11-20 of the Illinois Municipal Code. (65 ILCS 5/8-11-20.) Before an agreement for any sales tax rebate is executed, certain findings must be made by the corporate authorities depending upon whether the business to be granted the incentive is being constructed on vacant property or improved property.

The statutes authorizing these economic development tools should be consulted for details, but the first task of a community, once it recognizes the advantages it can provide to business, is to determine whether a relinquishing of a certain amount of sales tax or property tax revenue will attract new or expanded business and will in the long run also be a financial benefit and a boon to development for the municipality.

18. What do you do if a council member moves to reconsider the approval of a contract which has already been signed?

ANSWER: This action should be discouraged, as it could subject the municipality to a legal challenge from the other party that has signed the contract. In the Monge v. City of Pekin case decided in 1993, the appellate court found a similar effort invalid because the rights of third parties had intervened in the period between the initial approval of the transaction and the subsequent votes to reconsider and then overturn the earlier approval, although that conclusion was based in part on the court's finding that the reconsideration was made by a council without legal authority.

19. What do you do with minutes of closed session meetings?

ANSWER: The statutes require that minutes be taken of all meetings, whether open or closed to the public. Minutes of closed meetings should be approved in closed session. Every six months, the corporate authorities are required to review the minutes of closed session meetings which have not previously been released to the public to determine whether the minutes still need to be kept in confidence or whether such minutes, or portions thereof, no longer require confidential treatment and should be available for public inspection. That determination should be formalized by resolution in open session. (5 ILCS 120/2.06(c)).

20. What do you do if your Village Administrator wants a multi-year contract?

ANSWER: Ordinarily, contracts entered into by a non-home rule municipality are limited to a one-year term because of the "prior appropriation" requirement. The Illinois Municipal Code, however, contains an exemption for contracts involving the employment of a manager, administrator, health officer, finance director, attorney, police chief, or other officer who requires technical training or knowledge, engineers, doctors, land planners, auditors, professional consultants and the data processing services and the provision of services which directly relate to the prevention, identification or eradication of disease. For all of these individuals and services, the municipality may enter into a multi-year contract which cannot exceed the term of the Mayor or Village President. A municipality may also execute multi-year intergovernmental agreements and collective bargaining agreements. (65 ILCS 5/8-1-7).

21. What do you do if you didn't pass your appropriation ordinance on time?

ANSWER: State law requires that the appropriation ordinance of a municipality must be passed before the end of the first quarter of its fiscal year. If a municipality fails to pass such an appropriation ordinance, it is barred from making expenditures and it cannot levy real estate taxes that are determined by the amounts contained within the appropriation ordinance. If a municipality misses the statutory deadline, it does have the option of passing an ordinance modifying its fiscal year forward so that it can then pass the appropriation ordinance within the first quarter of the new fiscal year. Great care should be taken to make sure that a municipality does in fact pass its appropriation ordinance on time.

22. What do you do if the Clerk is ill and cannot take the Minutes?

ANSWER: A recent decision of the Illinois Attorney General makes it clear that the municipal clerk is entitled to take minutes of the meetings of the corporate authorities. If the clerk is ill and cannot take the minutes, and there is a deputy clerk, that individual should take the minutes. If the clerk or deputy clerk is not present, then the council or board can and should appoint a recording secretary to take the minutes of the meeting. Clerks are also permitted to attend all meetings of the corporate authorities, both open and closed meetings. The clerk can be barred from attendance at a closed meeting only when the matter being discussed is one in which the clerk's position is adverse to that of the municipality, such as in litigation involving the clerk.

23. What do you do if you are an Alderman and a house painter and you want to offer to paint the Village Hall for half your normal price?

ANSWER: In general, elected municipal officials are barred from entering into contracts to provide goods or services to the municipality. In this example, the alderman is a house painter who owns his or her business. In that case, the official may provide such services if the amount of the contract does not exceed $2,000.00 and the total amount of other such contracts during the fiscal year do not exceed $4,000.00. The member must also publicly disclose the nature and extent of an interest in the contract and must abstain from voting. (65 ILCS 3.1-55-10(b)(2). Other exceptions deal with situations where the official seeking the contract has less than a 7% share of ownership in the company. (65 ILCS 3.1-55-10(b)(1).

24. What do you do if the mayor's son wants to be considered for building commissioner?

ANSWER: Illinois law assumes that relatives of an elected official are independent individuals whose employment by the municipality does not, per se, constitute a conflict of interest. Thus, a mayor's spouse, son or other relative may be considered for the position of (and serve as) building commissioner or any other office or employment within the municipality. The mayor cannot receive any direct financial payment for arranging or participating in the employment.

25. What do you do if a majority of the Council wants to replace the Police Chief?

ANSWER: In no municipality can the council or board, on its own, remove a police chief from office. In some municipalities, the board of fire and police commissioners chooses the police chief. In most municipalities, the mayor appoints the chief. In municipalities with a population over 5,000, the mayor can only remove an appointed police chief with the act being ratified by the council or board. The council or board, however, exercises control over the police chief's salary.

26. What do you do if your town and its neighboring community keep out-doing each other in offering higher density and benefits to unincorporated territory between the two municipalities?

ANSWER: If two municipalities are involved in a costly and excessive battle over which community will annex land lying between the two municipalities, the statutes provide a device to solve this problem. The municipalities can agree to the creation of a boundary line across which neither municipality will annex territory. That boundary agreement can be for a period of up to 20 years and can give the municipalities the right to appear and comment upon proposed zoning categories to be granted to the land to be annexed. (65 ILCS 5/11-12-9).

27. What do you do if the Mayor unexpectedly vetoes an ordinance at the meeting after it was passed and there aren't enough Aldermen present to override the veto?

ANSWER: The law regarding the veto override is now a three-step process. First, the council or board passes the matter which the mayor has the right to act upon by approval or veto. Not all matters are subject to the mayor's veto. The mayor can veto all ordinances and any resolutions or motions which create a liability against a municipality, provide for the expenditure or appropriation of its money or sell any municipal property. The second step in the process is the action of the mayor, which must be in writing, to veto the council or board action. The veto is to be returned to the council or board at the next regular meeting occurring not less than five days after passage of the action vetoed. Before a recent change in the law, it was thought that the council or board could act to override the mayor or president's veto at the same meeting at which the veto message was delivered. The statute has now been clarified to provide that the response of the legislative body is to take place at the next regular meeting which follows the one at which the veto message was delivered. While somewhat delaying and extending the process, this statutory change now prevents a situation where the mayor can deliver a veto message unexpectedly at a meeting at which there are not sufficient members present to override the veto. (65 ILCS 5/3.1-40-45).

28. What do you do if the municipality finds that a permit has improperly been issued after construction of a building has begun?

ANSWER: If a municipality finds that a permit has been improperly issued after construction of a building has begun, it needs to review the principles stated in a series of cases, as to whether the rights of the property owner have intervened and whether the cost of following the ordinances would be unreasonable when compared to the benefit to be achieved by complying with the municipal ordinances. In some cases, the courts have held that a municipality has waited too long to correct its mistake or that the cost of fully complying with the ordinances would be excessive. Where the mistake which the municipality made would result in a building being constructed which had serious construction flaws, the court will likely order the owner to comply with the ordinances even if the cost is substantial. Sometimes a compromise can be worked out. This is a situation where the municipality should carefully consider its options before attempting to stop construction.

29. What do you do if you are an Alderman who is Chairman of the Public Works Committee and you unexpectedly have a chance to bid on a great buy on a pick-up truck at a private auto auction?

ANSWER: Any one member of a council or board including the mayor and president, has no more power to expend public funds than that of an average citizen until he or she has been authorized to do so. Thus, the chairman of the public works committee, who has not been authorized by the council or board to expend municipal funds, has no legal right to bid on a pick-up truck at an auto auction on behalf of the municipality. If that individual purchases the truck and pays for it, he or she may end up owning the truck unless the council confirms the action and reimburses the public official.


30. What do you do if your municipality is denied membership in a governmental police dispatching pool?

ANSWER: A municipality which is denied membership in any kind of intergovernmental entity, generally has no recourse. Under the intergovernmental cooperation section of the Constitution and the state statutes, governments are allowed to choose those entities with which they desire to enter into an intergovernmental relationship. No municipality can force its way into such an intergovernmental entity. The sole exception might be a situation where it can be proven that a municipality is excluded on racial or other protected class grounds.

31. What do you do if a telecommunications company wants to run lines down municipal streets?

ANSWER: It was usually assumed that municipalities could prevent telecommunications companies from utilizing public roads without gaining a municipal franchise. In a case involving Arlington Heights, the Illinois Supreme Court held that a municipality could not prevent a company from using its public roads if it was merely traversing the community and not providing services. A municipality was entitled to hold the utility company to reasonable construction standards but it had no authority to bar the company from constructing the lines or requiring payment for the right to utilize the municipal streets. The rule would be different if a telecommunications company wished to utilize municipal land that had not been dedicated for roadway purposes. After that case, the legislature passed a law specifically allowing municipalities to charge an infrastructure maintenance fee of 1% of the gross revenues of the utility company in lieu of requiring a franchise. Municipalities also were authorized to pass reasonable rules and regulations regarding construction standards.

32. What do you do if a new commercial complex wants to be served with municipal utilities, but is a half mile away from the municipality's borders?

ANSWER: A municipality has the right to extend its utility lines to a commercial complex outside of its corporate boundaries. Usually, municipalities will not agree to offer such services unless the owner of the commercial complex agrees to enter into an annexation agreement with the municipality (65 ILCS 5/11-15.1-1). Such agreements can last for a period of up to 20 years and will require that the owner annex the land to the property if it becomes contiguous to the boundaries of the community during the term of the agreement. The annexation agreement can also require the developer to construct a building in accordance with plans submitted to the community before the annexation agreement is entered into and it can require that the construction comply not only with county standards but also with municipal standards. The agreement can also provide for financial payments to the community in lieu of sales taxes, or an agreement can be worked out with the county to share sales taxes. The county may agree to such a sharing arrangement because, without municipal utilities, the commercial complex might not be built.